Dispossession and Access to Land in South Africa. An African Perspective

This book deals with the conceptualization of access to land by the dispossessed in South Africa as a human right. Yanou examines the country's property model in the context of the post apartheid constitutional mandate to redress the skewed land distribution of the past. The book reviews the strengths and weaknesses of the land restitution process as well as the question of the payment of just and equitable compensation for land expropriated for restitution. It also reviews the phenomenon of land invasion and quality of access to land enjoyed by the South African black woman under the present dispensation. Yanou argues that the courts have, on occasions, construed just and equitable compensation generously. This approach has failed to reflect the fact that what is being paid for is land dispossessed from the forebears of indigenous inhabitants. In a South Africa that lost most of its ancestral land during colonialism and apartheid, access to land for the dispossessed should not be equated with the protection of property acquired under apartheid. Getting it right would entail truth and reconciliation with the collective dispossession suffered by South African blacks.

Cover

Title Page

Copyright Page

Acknowledgement

Contents

Preface

A new book on land law in the new constitutional dispensation in
South Africa from an African perspective is to be welcomed. The
book consists of 8 chapters and is 140 pages in length.
Dr Yanou has based his book on material submitted for his doctoral...

Chapter One - Land: history and perspectives

Land is a vital resource whose ownership and control have been the
most contentious issue in South Africa since the arrival of the white
man in the country. The early history of the country can, with some
justification, be summed up as a gigantic struggle for land between the
indigenous African peoples and white...

Chapter Two - Land dispossession

Dispossession is a key feature of South African history, which in the
opinion of (Lahiff 2004: 1) continues to shape the discourse on land
holding and use. The country’s legacy of dispossession resulted from
centuries of the forced removal of blacks from the land through external
colonialism which took different forms and racially discriminatory laws...

Chapter Three - Land rights as human rights

Gray (2002: 211) who posits that land law and human rights are not
natural bedfellows has identified some reasons for their apparent
differences. Firstly, he states that human rights are based on the idea of
the intrinsic worth or dignity of the individual. For Gray, because human
rights stress concern for the other person, it is antithetical to popular ideas...

Chapter Four - The constitutional property clause Property in the interim constitution

The interim constitution that became operational in April 1994
officially introduced democratic governance, a bill of rights and other
guarantees. Section 28 of this constitution was novel in so far as it made
reference to rights in property, thereby heralding a new land regime in the
country. However, this new land normative structure could, when seen...

Chapter Five - Accessing land in post-apartheid South Africa

The government’s policy on land was defined in the reconstruction
plan as involving the strategies of the redistribution of both residential
and agricultural land to those who need it but cannot afford it, and
restitution for those who lost land as a consequence of past discriminatory...

Chapter Six - Compensation

Section 25 (2) provides for the expropriation of land for public
purpose subject to the payment of just and equitable compensation.
There was consensus across the political spectrum that expropriation of
the new land owners was dictated by the forced removal of blacks from
their ancestral land. Binswanger (1996: 139) noted that this was not the...

Chapter Seven - Land redistribution

The land redistribution policy received final constitutional expression
in Section 25 (4) (a) and Section 25 (5) of the 1996 Constitution.
Both provisions view the redistribution policy as relating to the creation
of conditions that would enable citizens to gain access to land on an
equitable basis. For Van der Walt (1999: 342), these provisions prioritize...

Chapter Eight - Conclusion and recommendations

This study has examined the crucial issue of the dispossession of
Africans of their ancestral land in South Africa. It has evaluated
the country’s post-apartheid property structure from the
perspective of determining the extent to which the injustices of...

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